You may have read about the recent case of Ilott v Mitson in which an able-bodied and independent adult daughter successfully made a claim against her mother's estate where there was no evidence of financial dependency on the part of the daughter and where the two had been estranged for a number of years.
Unfortunately, while we may all believe in the concept of testamentary freedom (whereby we are all free to leave our assets as we wish by making a Will), in what is an increasingly claim driven culture, these types of claims are becoming ever more common. It can be extremely difficult to predict how a judge will view such a claim, but there are some steps that can be taken to reduce the possibility of a successful claim being brought against your estate.
I fought the law and the law won
Perhaps unsurprisingly, the first step is always to consult a solicitor when contemplating making a new Will or updating an existing Will. We are trained to provide personally tailored advice and can help you avoid certain pitfalls that may make your estate more of a target for disgruntled family members.
If family relations have become strained and you are contemplating excluding one or all of your children from your Will, then we would suggest that you speak with us first. As Ilott v Mitson illustrates, while your child might not be financially dependent upon you, if the Court is of the view that your Will does not make reasonable financial provision for that child, then it may make a suitable award from your estate.
This does not necessarily mean that you must make your child the main beneficiary of your Will; you might instead leave them a smaller gift accompanied by a brief letter in which you clearly explain your actions and your reasons for favouring another person or charity. Such a letter may help your child and the Court to understand your decision.
If you feel that you absolutely do not wish to include your child in your Will, then it is wise to ensure that you have a connection to the persons or charities that you name as beneficiaries of your Will. If you can prove some link to a particular charity or person, then the Court is potentially less likely to intervene and allow a challenge to your Will.
A further potential step to consider is the inclusion of a discretionary trust in your Will whereby your entire estate is placed into a trust of which a number of people (inlcuding your children) and/or charities are potential beneficiaries. You again leave a letter addressed to your trustees explaining how you would ideally like your estate to be distributed, but because the trust is only distributed at the discretion of the trustees, they have the flexibility to alter the distribution of your estate to meet the needs of any unsatisfied parties.
If you would like to discuss the issues raised or Will drafting more generally, then please get in touch with your usual contact at Wansbroughs.